SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6103____ OF 2008 @ S.L.P. (C) NO.1823 of 2007

Vaniyankandy Bhaskaran               ..Appellant

Vs.

Mooliyil Padinhjarekandy Sheela        …Respondents

J U D G M E N T  

ALTAMAS KABIR,J.

1. Leave granted.

2. An  interesting  question  regarding  the

interpretation of Rule 104 of Order 21 of the

Code of Civil Procedure in relation to Rule 101

thereof has been raised by Mr. M.K.S. Menon,

learned counsel for the appellant.  In order to

appreciate his submissions, it is necessary to

briefly set out the facts of the case giving

rise to such question.

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3. The appellant, who was the original owner of the

suit  property  along  with  the  building  erected

thereupon, allegedly took a loan of Rs.50,000/-

from  the  husband  of  the  respondent   No.1  and

under  the  guise  of  security  for  the  loan  the

appellant  was  made to execute a  conveyance  in

respect of the suit property measuring 88 cents

in favour of the respondent No.1 on 1st October,

1986.  According to the appellant, on the same

day his wife was also made to sign on a blank

paper, which was later on converted into a Rent

Deed.  It also appears that on account of another

loan taken by the appellant from the Syndicate

Bank, OS No.176 of 1982 was instituted by the

Bank against the appellant for recovery of the

amounts  due,  before  the  Subordinate  Court,

Thalasherry,  in  which  the  suit  property  was

attached.   

4.   In  1990,  OS  239  of  1990,  filed  by  the

respondent  No.1  before  the  Subordinate  Court,

Thalasherry, for recovery of the suit property on

the  strength  of  the  conveyance  executed  in  her

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favour,  was  decreed.   An  appeal  was  preferred

therefrom by the appellant before the High Court,

being AS No.609 of 1992, and during the pendency of

the appeal, the respondent No.1 filed RCP No. 292

of 1993 against the wife of the appellant under

Sections 11(2)(b) and 11(3) of the Kerala Buildings

(Lease and Rent Control) Act, 1965, on the ground

of default in payment of rent for the suit building

since August, 1989.  An additional ground was also

taken by the respondent No. 1 claiming that the

building was also required by her for her own use

and occupation.   

5. The said Rent Control Petition was dismissed by

the Rent Control Court on the ground that the title

in relation to the building was in dispute in OS

No.239 of 1990.  An appeal, being RCA No. 197 of

1994, filed by the respondent No.1 before the Rent

Control Appellate Authority from the order of the

Rent Control Court, was allowed and eviction was

ordered.  The wife of the appellant thereupon filed

a revision petition before the High Court, being

CRP  No.2532  of  1996,  which  was  dismissed  on  2nd

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April 2004, by a common judgment delivered in AS

No.609 of 1992 and CRP No. 2532 of 1996, whereby

the title of the appellant in respect of the suit

property was upheld and the order passed in RCA

No.197 of 1994 was confirmed.  The appellant’s wife

was given two months’ time to pay the arrears of

rent, failing which the respondent was given leave

to take steps for execution of the order.  Since

the  arrears  were  not  paid  within  the  stipulated

time,  the  respondent  No.1  filed  Execution

Proceedings No.407 of 2004 seeking the appellant’s

eviction  and  delivery  of  possession  of  the  suit

premises.  The appellant’s wife entered appearance

before the Executing Court, which ordered delivery

of  possession  of  the  suit  premises  to  the

respondent on 2nd April, 2005.  Since such delivery

was resisted by the appellant, the Court ordered

delivery to be effected with Police help on 18th

July,  2005.   Thereafter,  attempts  were  made  to

settle the matter and the respondent also agreed to

withdraw the execution proceedings unconditionally.

According  to  the  appellant,  although,  the

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respondent  had  agreed  to  withdraw  the  execution

proceedings, the same was never withdrawn, which

compelled the appellant to file OS No. 181 of 2005

and also for an injunction to prevent the eviction

of the appellant in Execution Proceedings No.497 of

2004  in RCP No.292 of 1993.   Inasmuch as, such

prayer for injunction was allowed by the learned

Subordinate  Judge,  the  respondent  challenged  the

same before the High Court.

6. On behalf of the respondent herein, who was the

appellant before the High Court, it was contended

that when her title to the scheduled property and

the building had been upheld and the eviction had

also  been  ordered,  such  execution  of  the  decree

legally obtained could not be stalled merely on the

basis  of  a  claim  made  by  the  husband  of  the

judgment-debtor  on  the  basis  of  an  unregistered

agreement  alleged  to  have  been  executed  by  the

respondent on a stamp paper purchased in her name.

The High Court observed that the Trial Court had

simply proceeded on the basis that the agreement in

question was genuine and had shifted the burden of

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proving  the  said  agreement  to  be  a  manufactured

document  on  the  respondent.   The  High  Court,

therefore, took the view that in order to prevent

the  respondent  from  obtaining  delivery  of  the

possession of the suit premises in the execution

proceedings, the appellant had colluded with his

wife, the judgment-debtor, in instituting the suit

for  specific  performance  and  to  obtain  an

injunction therein to restrain the respondent from

enjoying  the  benefits  of  the  decree  obtained  by

her.    The  High  Court,  therefore,  came  to  the

conclusion that the injunction granted by the Trial

Court in favour of the appellant herein was highly

irregular  and  deserved  to  be  set  aside.   The

injunction petition filed by the appellant in OS

No.181 of 2005, in the Court of Subordinate Judge,

Thalasherry, was therefore, dismissed.  

7. It  is  in  the  aforesaid  background  that  Mr.

Menon  urged  that  the  provisions  of  Rule  104  of

Order  21  of  the  Code  of  Civil  Procedure  were

required to be considered.

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8. Since we shall be considering the effect of the

aforesaid Rule, the same is set out hereinbelow:-

“Order  XXI.  Rule  104.-  Order  under Rule 101 or Rule 103 to be subject to the result of pending suit.   -  Every order made  in  Rule  101  or  Rule  103  shall  be subject to the result of any suit that may be pending on the date of commencement of the  proceeding  in  which  such  order  is made, if in such suit the party against whom the order under Rule 101 or Rule 103 is made has sought to establish a right which he claims to the present possession of the property.”

9. Mr. Menon submitted that the said provision was

not there in the Code of Civil Procedure in its

original form and was included by amendment with

effect from 1st February, 1997 together with Rules

98 to 103, 105 and 106 of Order XXI.

10. Mr. Menon submitted that in order to curtail

the delay in executing the decree for possession of

immovable property, the amended Rules were brought

on the Statute book to enable the Executing Court

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itself to decide claims of title which might be

raised in execution proceedings without filing of a

separate suit for the said purpose.

11. Mr. Menon submitted that the amended provisions

of Order 21 of the Code provided for a scheme by

which any obstruction to the execution of a decree

giving rise to questions relating to right, title

or interest in the suit property, arising between

the  parties  to  a  proceeding,  on  an  application

under Rule 97 or Rule 99 or their representative

and  relevant  to  the  adjudication  of  the

application,  is  to  be  determined  by  the  Court

dealing with the application and not by a separate

suit.  The said provision contained in Rule 101 has

been referred to in Rule 104 which indicates that

any order made under Rule 101 or Rule 103 would be

subject  to  the  result  of  any  suit  that  may  be

pending  on  the  date  of  commencement  of  the

proceeding in which such order is made.  According

to Mr. Menon, although the execution proceedings

were commenced on 3rd November, 2004, and the suit

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for specific performance was filed by the appellant

on 27th August, 2005, the actual order was passed on

the  application  under  Rule  97  by  the  Executing

Court on 19th December, 2005, after the suit had

been  filed  by  the  appellant.   In  other  words,

according  to  Mr.  Menon,  the  suit  filed  by  the

appellant was pending on the date when the order

under  Rule  97  and  Rule  98  was  made  and  would,

therefore, be subject to the provisions of Rule 104

and would have to await the outcome of the suit for

specific performance filed by the appellant.  Mr.

Menon  urged  that  the  High  Court  had  erred  in

relying on the provisions of Rule 2 of Order 21 of

the Code in setting aside the order of injunction

passed  by  the  learned  Subordinate  Judge  on  the

application for injunction filed by the appellant

in OS No.181 of 2005.

12. Appearing for the respondent, Mr. Vishwanathan,

on the other hand, submitted that the submission

regarding the applicability of Rule 104 of Order 21

of the Code of Civil Procedure to the facts of this

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case was wholly misconceived since the execution

proceedings  had  been  commenced  long  before  the

appellant’s  suit  for  specific  performance  was

filed.  While the respondent’s suit for recovery of

possession  was  decreed  in  1990,  the  execution

proceedings for executing the decree was commenced

on 3rd November, 2004, and the appellant filed his

suit  for  specific  performance  about  ten  months

later on 27th August, 2005.

13.  Mr.  Viswanathan  submitted  that  since  the

eviction proceedings against the appellant’s wife

had reached its final stages, the appellant raised

a new claim based on an unregistered document to

stall the execution of the decree for possession

made as far back as in 1990.

14. The submissions made on behalf of the appellant

regarding the applicability of Rule 104 of Order 21

of the Code has substance and merits consideration

in an appropriate case, but they do not justify

interference with the order of the High Court in

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the facts of this case.  The suit filed by the

appellant for specific performance of contract was

considerably  later  in  point  of  time  than  the

commencement of the execution proceedings and, in

any event, the language of Rule 104 is clear and

unambiguous that any order made under Rule 101 or

Rule 103 would be subject to the result of a suit

pending  on  the  date  of  commencement  of  the

proceeding in which orders were made under Rule 101

or 103. Since the appellant’s suit was filed long

after  the  commencement  of  the  execution

proceedings, the provisions of Rule 104 of Order 21

of the Code will not apply to this case.

15.  We cannot also find any fault with the views

expressed  by  the  High  Court  in  relation  to  the

provisions of Order 21 Rule 2 of the Code regarding

adjustment  of  the  decree  in  terms  of  an  oral

settlement alleged to have been arrived at between

the parties on 21.2.2005.

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16. Furthermore, we also agree with the High Court

that  the  burden  of  proving  that  the  Agreement

relied upon by the appellants was manufactured had

been wrongly shifted upon the respondent No.1 in

contravention of Section 103 of the Indian Evidence

Act, 1872.

17. We, therefore, find no reason for disturbing

the order of the High Court impugned in this appeal

on  any  of  the  grounds  urged  on  behalf  of  the

appellant.   The  appeal,  therefore,  fails  and  is

dismissed, with cost accessed at Rs.10,000/-.

......................J.                           (Altamas Kabir)

......................J.                           (Markandey Katju)

New Delhi Dated :  October 14, 2008

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